WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2021-06-22 Docket: M52556 (C69272)

Before: Brown J.A. (Motions Judge)

Between: Her Majesty the Queen, Respondent (Responding Party) and D.R., Appellant (Applicant)

Counsel: Laurence Cohen, for the applicant Mabel Lai, for the responding party

Heard: June 15, 2021 by video conference

Endorsement

Overview

[1] The appellant, D.R. [1], applies for release pending the determination of her appeal from convictions on: three counts of sexual assault, uttering a death threat regarding the complainant’s father, assault, and assault with a weapon (R. v. R. (D.), 2020 ONSC 5578).

[2] The applicant’s two-day trial took place in the Superior Court of Justice before a judge alone. The only witnesses were the applicant and the complainant.

[3] On March 11, 2021, the sentencing judge imposed the following sentence: (i) 4.5 years for the sexual assaults that occurred after the complainant moved in with the applicant in December 2017; (ii) 6 months concurrent on the May 2018 assault, assault with a weapon, and uttering a death threat; and (iii) 3 years concurrent on the two counts of sexual assault involving events in September 2017. After giving credit for pre-sentence custody, the resulting global sentence to serve was 4 years and 174 days: R. v. R. (D.), 2021 ONSC 1808.

Background

[4] The applicant and complainant met at college in September 2017. At that time, the complainant was 16 years old and the applicant was 18 years old.

[5] Twice that September the complainant and applicant went for walks near the campus during which the applicant penetrated the complainant. The relationship continued and from late December 2017 until late May 2018 the complainant lived with the applicant in the applicant’s mother’s home. The applicant introduced the complainant to marijuana. In April and May 2018, on approximately 15 occasions, the complainant fell asleep after smoking marijuana only to awake and find the applicant having sexual intercourse with her. Several times the complainant awoke to find the applicant inspecting her vagina through a tube from a vaping device.

[6] At some point, the applicant sent the complainant text messages in which she threatened to stab the complainant’s father with a screwdriver.

[7] Ten recordings made by the complainant in April and May 2018 were introduced at trial. They recorded the applicant screaming at the complainant, and sometimes at the complainant and the applicant’s mother.

[8] In May 2018, while the complainant was out on a walk, the applicant met up with her, physically pulled on the complainant to accompany her and, when the complainant said she would call the police, the applicant threw the complainant’s cell phone at her.

[9] The applicant appeals against conviction and sentence. As described in the notice of appeal, the main grounds concern the trial judge’s assessment of the credibility of the applicant and complainant. [2] The notice of appeal asserts that the trial judge erred in her credibility assessment by:

(i) Placing undue emphasis on a series of recordings the complainant made of conversations with the applicant, which demonstrated fits of rage by the applicant;

(ii) Failing to engage in a specific analysis of the sexual assault allegations, especially those concerning the two September 2017 sexual assaults, other than examining the applicant’s general abusive behaviour;

(iii) Rejecting the applicant’s credibility notwithstanding the lack of challenge during cross-examination to the applicant’s evidence regarding the sexual assaults; and

(iv) Failing to use the complainant’s return to the applicant’s home after the sexual assaults and the complainant’s report to the police as evidence relevant to the complainant’s credibility.

[10] At the hearing, applicant’s counsel focused on the lack of analysis by the trial judge in her reasons in regard to the sexual assault counts. He submitted that the reasons disclose no facts upon which the trial judge made her assessment of the applicant’s credibility, which amounts to a misapprehension by the trial judge of the evidence on those counts. Counsel further submitted that while the complainant’s continued relationship with the applicant after the assaults was not determinative of her credibility, it was a factor that the trial judge should have considered in her assessment of the complainant’s credibility. Her failure to do so constitutes reversible error.

[11] The respondent submits that the applicant has failed to demonstrate that her appeal is not frivolous: Criminal Code, s. 679(3)(a). The respondent acknowledges that if the court finds the applicant has discharged her burden on that branch of the test, the applicant’s release is otherwise appropriate on the bail conditions in the draft order, which substantially mirror those in effect at the time of the trial.

[12] Since the transcripts of the trial are not yet available, on this application the applicant relies upon the written reasons of the trial judge.

Has the Applicant Established That Her Appeal Is Not Frivolous?

[13] The bar for establishing that an appeal is not frivolous is “very low”: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. As described by Watt J.A. in R. v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38: “An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established.” The purpose of the “not frivolous” threshold is to require the applicant to “demonstrate that the appeal has some merit. If this were not so, the appellate process could be abused by those intent on forestalling the execution of a custodial sentence”: R. v. T.S.D., 2020 ONCA 773, at para. 24.

[14] Credibility determinations by a trial judge attract a high degree of deference; the sufficiency of a trial judge’s reasons must be assessed in light of that deference: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11; R. v. G.F., 2021 SCC 20, at para. 81. However, as stated in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26:

Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 23). As this Court noted in R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, the accused is entitled to know “why the trial judge is left with no reasonable doubt”.

[15] The trial judge’s assessment of the applicant’s credibility proceeded in the following fashion: the trial judge rejected the applicant’s explanation of texts she sent to the complainant’s mother and the threats about her father as far-fetched and not making sense; she then concluded that the audio recordings confirmed the applicant’s animus against the complainant’s family; she found that the applicant’s explanation about restraining the complainant in May 2018 from leaving did not make sense; the applicant’s denial of ever “dosing” the complainant with marijuana was contradicted by text messages between the applicant and a friend; and there were inconsistencies between the applicant’s evidence at trial and her statement to the police of the effect of steroids on the applicant’s behaviour. That led the trial judge to conclude, at para. 84:

For all of these reasons, I did not find [the applicant] to be a credible witness. Her evidence was incredible, defied logic and common sense and is contradicted by trustworthy evidence. I do not believe her evidence. Given my findings that [the applicant] willingly mislead the court, her evidence does not raise a reasonable doubt.

[16] The trial judge then considered whether the Crown had met its burden on each count, in accordance with the principles in R. v. W.(D.), [1991] 1 S.C.R. 742. The trial judge started with the count alleging the applicant uttered a death threat to the complainant on May 24, 2018 and acquitted. But the trial judge then convicted on the count concerning the uttering a death threat in respect of the complainant’s father.

[17] The trial judge next found that the complainant was a credible witness and did not view the complainant’s continuation in the relationship after the alleged offences as detracting from her credibility. She held that the audio recordings demonstrated how the applicant abused and manipulated the complainant and accepted the complainant’s explanation about why she stayed in the relationship.

[18] Accordingly, whatever relevance the complainant’s continuation of the relationship after the sexual assaults might possess in light of the decision of the Supreme Court in R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2, the trial judge in fact examined the evidence on that issue, accepted the complainant’s explanation, and did not regard the conduct as detracting from the complainant’s credibility. On the face of her reasons, the trial judge did not commit the error now alleged by the applicant.

[19] The trial judge continued her examination of the evidence on the counts by accepting the complainant’s version of the events of May 24, 2018 and convicted the applicant on the assault and assault with weapon counts.

[20] The trial judge concluded her reasons by dealing with the three counts of sexual assault. In respect of the count concerning the sexual assaults while the complainant lived with the applicant, the trial judge wrote at paras. 109-112:

Count 7 alleges that during the time [the complainant] and [the applicant] were living together, [the complainant] would wake up to [the applicant] sexually assaulting her, sometimes with a vaping tube. I accept [the complainant’s] testimony that [the applicant] introduced her to marijuana in an effort to calm her down and lessen the conflict between them. Her evidence on this point is corroborated by the text messages sent by [the applicant] to her friend.

The defence contends that there is no corroboration with respect to these sexual assaults. I disagree. The audio recordings made leading up to this timeframe demonstrate [the applicant’s] pattern of obsessive and abusive behaviour towards [the complainant]. The level of rage demonstrated by these audio recorded tirades is difficult to describe in words. It is jarring, shocking, and horrifying. Not only is the level of rage displayed by the volume with which [the applicant] yells, but the words screamed demonstrate how [the applicant] tried to manipulate [the complainant]. For example, [the applicant] turned a situation where [the complainant] is clearly concerned about the steroids [the applicant] was using into a situation where [the complainant] is led to believe that she has done something wrong in hiding the drugs.

I am cognizant of the fact that there is no mention of the sexual assaults on the audio recordings. It was not [the complainant’s] evidence that she recorded every argument with [the applicant]. I accept her evidence that arguments that occurred immediately after she was awoken would have been difficult, if not impossible, to surreptitiously record. [The complainant] testified that she made the recordings to remind herself what [the applicant] was capable of, not to create corroborative evidence to be used in a future court proceeding. Although there is no mention of the sexual assaults on the audio recordings, I find that they corroborate the overall way that [the applicant] treated [the complainant] throughout their relationship. They demonstrate [the applicant’s] hatred of women and her need to dominate, manipulate, demean and intimidate [the complainant]. This is consistent with [the applicant] not respecting [the complainant’s] physical and emotional integrity including sexually assaulting her.

I therefore find [the applicant] guilty of Count 7, that being that she sexually assaulted [the complainant] while she slept during the months of December 2017 through May 2018.

[21] The trial judge then turned to the two counts regarding the sexual assaults that took place when the complainant and applicant went on walks in September 2017 stating, at paras. 113-114:

Counts 3 and 4 in the indictment allege that [the applicant] sexually assaulted [the complainant] in the woods near campus on two occasions in September 2017. [The applicant] categorically denies this. For reasons given I do not accept [the applicant’s] evidence, nor does it raise a reasonable doubt. Having found [the complainant] to be an honest, credible and forthright witness I accept her evidence that these sexual assaults occurred as she described them. I do not find her less worthy of belief because she failed to report these assaults immediately and continued to see [the applicant].

Therefore, I find [the applicant] guilty of Counts 3 and 4. Specifically, I find that she sexually assaulted [the complainant] on September 17, 2017 and September 24, 2017.

[22] Contrary to the applicant’s submissions, the trial judge in fact engaged in a specific analysis of the sexual assault counts. On the face of her reasons, she did not commit the error the applicant alleges.

[23] Since the applicant has not filed the transcript of her evidence at trial, her submission that the trial judge erred by rejecting the applicant’s credibility notwithstanding the lack of challenge during cross-examination to the applicant’s evidence regarding the sexual assaults cannot be assessed in the concrete context of what took place at trial. However, I would make two observations.

[24] First, unlike the circumstances in R. v. Paris (2000), 150 C.C.C. (3d) 162 (Ont. C.A.), at para. 22, leave to appeal refused, [2001] S.C.C.A. No. 124, upon which the applicant relies, here the complainant testified that the applicant had sexually assaulted her before the applicant took the stand to give her evidence.

[25] Second, where, as in this case, the accused is tried on a multi-count indictment, the presumptive rule that evidence on one count of an indictment may not be used to prove the guilt of the accused on another count where the counts do not arise out of the same events does not apply to the assessment of witness credibility: R. v. T.C., 2019 ONCA 898, 383 C.C.C. (3d) 341, at para. 45. As stated by the Supreme Court in R. v. P.E.C., 2005 SCC 19, [2005] 1 S.C.R. 290, at para. 1:

The verdict on each count of an indictment must, of course, be based on evidence admissible with respect to that count; in assessing the credibility of each witness, including the accused, the trial judge was entitled, however, to consider the totality of the evidence given by that witness.

[26] Consequently, it is difficult to see, on the record before me, how the trial judge erred by applying her extensive reasons on why she did not regard the applicant as a credible witness following her review of several of the counts to the assessment of the applicant’s credibility that informed her analysis of the sexual assault counts.

[27] In sum, while the “not frivolous” criterion sets a very low threshold, given the detailed reasons of the trial judge on the assessment of credibility, I am not persuaded that the applicant’s credibility-based grounds of appeal exceed that very low threshold.

Disposition

[28] For the reasons set out above, I dismiss the applicant’s application for bail pending appeal.

“David Brown J.A.”

[1] At the time of the offences, the applicant identified as a man. Mid-trial, the applicant advised the trial judge that she now identifies as a woman, with she/her pronouns.

[2] Although the notice of appeal also seeks leave to appeal from sentence on the basis that the sentence was unduly harsh and unfit given the applicant’s age and lack of a criminal record, the applicant did not make submissions about this ground on the application for bail pending appeal.